United States v. Stewart, No. 10-3185 (2d Cir. 2012)

In 1995, Sheikh Abdel Rahman was convicted of soliciting the murder of Egyptian President Mubarak while he was visiting New York; attacking American military installations; conspiring to murder President Mubarak; conspiring in the successful 1993 bombing of the World Trade Center; conspiring to bomb other New York structures; and conspiring to commit sedition. His conviction was affirmed in 1999. Stewart was a member of his legal team and agreed to "Special Administrative Measures." Despite those obligations, Stewart smuggled messages to and from the incarcerated Sheikh, mostly relating to continuance of a ceasefire that an Egyptian militant group had declared on violent efforts to overthrow the Egyptian government. Stewart was convicted of conspiring to defraud the U.S., 18 U.S.C. 371; providing and concealing material support to a conspiracy to kill and kidnap persons in a foreign country, 18 U.S.C. 2339A and 18 U.S.C. 2; conspiracy to provide and conceal such support, 18 U.S.C. 371; and making false statements, 18 U.S.C. 1001. The Second Circuit affirmed but remanded for resentencing. On remand, he court determined that the Guidelines sentence was 360 months, which was also the statutory maximum, and imposed a sentence of 120 months. The Second Circuit affirmed.

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10-3185 United States of America v. Lynne Stewart 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2011 4 (Argued: February 29, 2012 Decided: June 28, 2012) 5 Docket No. 10-3185 6 ------------------------------------- 7 UNITED STATES OF AMERICA, 8 Appellee, 9 - v - 10 11 AHMED ABDEL SATTAR, also known as Abu Omar, also known as Dr. Ahmed, YASSIR AL-SIRRI, also known as Abu Ammar, MOHAMMED YOUSRY, 12 Defendants, 13 LYNNE STEWART, 14 Defendant-Appellant. 15 ------------------------------------- 16 17 Before: WALKER, CALABRESI, and SACK, Circuit Judges. Appeal from a judgment of the United States District 18 Court for the Southern District of New York (John G. Koeltl, 19 Judge), on remand from this Court, see United States v. Stewart, 20 590 F.3d 93 (2d Cir. 2009), sentencing defendant Lynne Stewart 21 principally to 120 months' imprisonment on her convictions for 22 conspiracy to defraud the United States, in violation of 18 23 U.S.C. § 371; conspiracy to provide and to conceal the provision 24 of material support to a conspiracy to kill and kidnap persons in 1 a foreign country, in violation of 18 U.S.C. § 371; providing and 2 concealing the provision of material support to a conspiracy to 3 kill and kidnap persons in a foreign country, in violation of 18 4 U.S.C. § 2339A & § 2; and making false statements to the United 5 States Department of Justice and the Bureau of Prisons, in 6 violation of 18 U.S.C. § 1001. 7 Affirmed. 8 9 10 11 12 Appearances: ANDREW S. DEMBER, Katherine Polk Failla, Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee. 13 14 15 16 17 18 19 20 HERALD PRICE FAHRINGER, Fahringer & Dubno, New York, NY (Jill R. Shellow, Law Offices of Jill R. Shellow, New York, NY; Robert J. Boyle, Law Offices of Robert J. Boyle, New York, NY, on the brief), for Appellant. SACK, Circuit Judge: Appellant Lynne Stewart appeals from a judgment of the 21 United States District Court for the Southern District of New 22 York (John G. Koeltl, Judge) sentencing her principally to 120 23 months' imprisonment following our vacatur on grounds of 24 procedural error of her previous sentence of 28 months and remand 25 of the district court's previous judgment insofar as it imposed 26 that sentence. 27 in our prior opinion, United States v. Stewart, 590 F.3d 93, 100- The details of this case were recounted at length 2 1 08 (2d Cir. 2009) ("Stewart I"). 2 insofar as we think it necessary to explain our judgment. 3 4 We repeat them here only BACKGROUND In October 1995, Sheikh Omar Ahmad Ali Abdel Rahman 5 ("Abdel Rahman") was convicted in the United States District 6 Court for the Southern District of New York of a variety of 7 crimes including "soliciting the murder of Egyptian President 8 Hosni Mubarak while he was visiting New York City; attacking 9 American military installations; conspiring to murder President 10 Mubarak; conspiring to bomb the World Trade Center in 1993, which 11 succeeded; conspiring subsequently to bomb various structures in 12 New York City, including bridges, tunnels, and the federal 13 building containing the New York office of the Federal Bureau of 14 Investigation . . . , which did not succeed; and conspiring to 15 commit crimes of sedition." 16 affirmed by this Court in 1999, United States v. Rahman, 189 F.3d 17 88, 104 (2d Cir. 1999) (per curiam), and his petition for a writ 18 of certiorari was denied by the United States Supreme Court the 19 following year, United States v. Rahman, 528 U.S. 1094 (2000). 20 Id. at 101. His conviction was Stewart had been a member of Abdel Rahman's legal team 21 during his trial and his appeal. Her conviction stemmed from her 22 repeated violations of the "Special Administrative Measures," or 23 "SAMs," to which she agreed to be, and was, subject as a member 24 of Abdel Rahman's legal team while he was incarcerated after his 3 1 conviction had become final. Stewart executed various 2 affirmations, under penalty of perjury, in which she agreed to 3 abide by the terms of the SAMs, among them that she would not 4 "use [her] meetings, correspondence or phone calls with Abdel 5 Rahman to pass messages between third parties (including, but not 6 limited to, the media) and Abdel Rahman." 7 103 (alteration in original; internal quotation marks omitted).1 Stewart I, 590 F.3d at 1 On May 1, 1998, [Stewart] signed a document entitled "Attorney Affirmation," in which she affirmed, under penalty of perjury, the truth of specified statements regarding the then-applicable SAMs: that she had read the May 11, 1998, version of the SAMs; that she "underst[ood] the restrictions contained in that document and agree[d] to abide by its terms"; that during her visits to Abdel Rahman she would "employ only cleared translators/interpreters and [would] not leave [any] translator/interpreter alone with inmate Abdel Rahman"; and that she would "only be accompanied by translators for the purpose of communicating with inmate Abdel Rahman concerning legal matters." Stewart also affirmed that neither she nor any member of her office would "forward any mail received from inmate Abdel Rahman to a third person" nor would she "use [her] meetings, correspondence or phone calls with Abdel Rahman to pass messages between third parties (including, but not limited to, the media) and Abdel Rahman." On May 16, 2000, and again on May 7, 2001, Stewart signed similar affirmations under penalty of perjury, again affirming that she had read the most recent versions of the SAMs, and that she would not use her contact with Abdel Rahman to pass messages between him and third parties, including members of the media. Stewart I, 590 F.3d at 102-03 (alterations in original; citations 4 1 Despite and contrary to those obligations, Stewart smuggled 2 messages to and from the incarcerated Abdel Rahman, while 3 purportedly acting in her capacity as his lawyer.2 4 105-08. 5 ceasefire that an Egyptian militant group, al-Gama'a,3 had 6 declared with regard to its violent efforts to overthrow the 7 Egyptian government. 8 whether to continue the ceasefire. See id. at Most of the messages related to the continuance of a 9 The group sought Abdel Rahman's advice on See id. On May 19 and 20, 2000, Stewart visited Abdel Rahman in 10 the Rochester facility. 11 Stewart's translator and co-defendant, Mohammed Yousry, including 12 "a letter to an al-Gama'a lawyer who favored the cease-fire, 13 asking him to allow others in al-Gama'a to criticize it, and 14 another to [a leader of the group] asking him to 'escalate the 15 language' of criticism of the cease-fire." Id. at 106. 16 smuggled these messages out of the prison. Id. at 107. 17 18 There he dictated several messages to Stewart On June 13, 2000, Stewart spoke to a Cairo-based Reuters reporter, telling him that Abdel Rahman "is withdrawing omitted). 2 Abdel Rahman was at all times relevant to the present proceedings incarcerated under heavy security in the Federal Medical Center in Rochester, Minnesota. 3 "In November 1997, . . . a group associated with al-Gama'a attacked, killed, and mutilated the bodies of more than sixty tourists, guides, and guards at the Hatshepsut Temple in Luxor, Egypt." Stewart I, 590 F.3d at 103. 5 1 his support for the ceasefire that currently exists." 2 (internal quotation marks omitted). 3 participating in a conference call with Abdel Rahman, Stewart 4 sent a fax to the Reuters reporter reaffirming Abdel Rahman's 5 previous statement withdrawing his support for the ceasefire. 6 Id. 7 Id. On June 20, 2000, after On April 8, 2002, Stewart was indicted for her actions 8 related to Abdel Rahman's communications to and from prison. 9 superseding indictment was filed on November 19, 2003. A Id. at 10 108. 11 convicted of conspiring to defraud the United States in violation 12 of 18 U.S.C. § 371 by violating SAMs imposed upon Abdel Rahman to 13 which she had agreed to be bound; providing and concealing 14 material support to a conspiracy to kill and kidnap persons in a 15 foreign country, in violation of 18 U.S.C. § 2339A and 18 U.S.C. 16 § 2; conspiracy to provide and conceal such support, in violation 17 of 18 U.S.C. § 371; and making false statements in violation of 18 18 U.S.C. § 1001. 19 On February 10, 2005, following a jury trial, Stewart was Id. Stewart appealed from the judgment of conviction; the 20 government cross-appealed as to her sentence. We affirmed the 21 judgment in all respects, except insofar as we concluded that the 22 district court had committed procedural error in the course of 23 Stewart's sentencing. We remanded for her resentencing. 6 Id. at 1 151-52.4 2 Stewart had committed perjury during her trial, which might 3 warrant a sentencing enhancement for obstruction of justice 4 pursuant to the United States Sentencing Guidelines 5 ("Guidelines"). 6 "consider whether Stewart's conduct as a lawyer triggers the 7 special-skill/abuse-of-trust enhancement under the Guidelines." 8 Id. 9 We instructed the district court to determine whether Id. at 151. We also directed the court to We further noted a lack of clarity in the record as to 10 whether the district court had actually applied the terrorism 11 enhancement in its Guidelines calculation. 12 that "in light of the facts of this case and the judgments of 13 conviction . . . , [it] plainly applies." 14 We observed, however, Id. at 150. "Finally, [we directed that] the district court . . . 15 further consider the overall question whether the sentence to be 16 given is appropriate in view of the magnitude of the 17 offense . . . ." 18 imposition of a non-Guidelines sentence, "we [did] require that 19 such a sentence, selected after the reconsideration we [had] Id. at 151. While we did not preclude the 4 Stewart's co-defendants Sattar and Yousry were convicted of related crimes. Although we found no procedural or substantive error in connection with their sentencing, we nonetheless remanded their cases too in order to provide the district court with the freedom to change their sentences in connection with the resentencing of Stewart. Stewart I, 590 F.3d at 151-52. The district court decided not to alter their sentences. Neither their convictions nor their sentences are at issue on this appeal. 7 1 directed, begin with the terrorism enhancement and take that 2 enhancement into account." Id. 3 We noted our "serious doubts that the sentence given 4 was reasonable" in light of our view of the seriousness of the 5 crimes. 6 reaching the question of substantive reasonableness. 7 Id. But we elected to allow for resentencing before Id. After remand, on July 15, 2010, the district court 8 resentenced Stewart. It explicitly applied the terrorism 9 enhancement, explaining that Stewart's actions were "calculated 10 to affect the conduct of the Egyptian government through 11 intimidation and coercion," and that the jury had found that 12 Stewart "possessed the specific intent to provide Abdel Rahman as 13 a coconspirator in a conspiracy to kill." 14 Hearing in United States v. Stewart, No. 02 CR 395(JGK) (S.D.N.Y. 15 July 15, 2010) ("Stewart II"), at 41-42. 16 Tr. of Sentencing The court then concluded that the obstruction-of- 17 justice enhancement applied because "[t]he defendant [had] made a 18 series of statements at trial that were clearly false concerning 19 a material matter that were made with the willful intent to 20 provide false testimony." 21 determined that the abuse-of-trust enhancement was applicable 22 inasmuch as Stewart "was able to participate in smuggling 23 messages into and out of the prison because of the trust placed 24 in her as the attorney for Sheikh Rahman." Id. at 45-52. 8 The court also Id. at 53. Taking 1 these enhancements into account, the court determined that 2 Stewart's Guidelines sentence was 360 months, which was also the 3 statutory maximum. 4 After evaluating the applicability of the terrorism 5 enhancement, the perjury it found that Stewart had committed, the 6 abuse of trust it found she had engaged in, and statements she 7 made indicating, in the view of the district court, a lack of 8 remorse on her part, and suggesting that she regarded her 9 previous sentence as trivial, and then balancing those factors 10 against significant mitigating factors, the court concluded that 11 a non-Guidelines sentence of 120 months -- one-third of the 12 Guidelines sentence -- was "sufficient but no greater than 13 necessary" to meet the sentencing objectives of section 3553(a). 14 Id. at 73. 15 Stewart appeals from the imposition of that sentence, 16 arguing primarily that the district court's consideration of her 17 post-sentencing statements violated her First Amendment right to 18 freedom of speech, and additionally that the court erred in 19 applying the obstruction-of-justice and abuse-of-trust 20 enhancements. 21 substantively unreasonable. 22 Stewart also argues that the 120-month sentence is We disagree in each respect, and therefore affirm. 9 1 DISCUSSION 2 I. Standard of Review 3 We review the district court's application of the 4 Guidelines de novo and its factual findings for clear error. 5 United States v. Watkins, 667 F.3d 254, 261 (2d Cir. 2012). 6 district court commits procedural error in sentencing if, for 7 example, it fails to calculate the Guidelines range, incorrectly 8 calculates the Guidelines range, does not properly consider the 9 factors set forth in 18 U.S.C. § 3553(a), or makes factual 10 findings that we conclude are clearly erroneous. The Id. 11 When reviewing for the substantive reasonableness of a 12 sentence of imprisonment, we examine "the length of the sentence 13 imposed." 14 basis of its magnitude only when the sentencing decision "cannot 15 be located within the range of permissible decisions." 16 (internal quotation marks omitted). Id. (alteration omitted). We will reverse it on the Id. 17 18 II. "Punishment of Stewart" for Her Public Statements as a Violation of Her First Amendment Rights 19 Stewart's principal argument on appeal is that her 20 statements to the public and the press subsequent to her initial 21 sentencing were impermissible bases for more than quadrupling her 22 sentence upon remand. 23 explicitly considered two statements that Stewart made after the On resentencing, the district court 10 1 imposition of her original sentence.5 2 increase based on the contents of her protected speech "strikes 3 at the heart of the First Amendment and is constitutionally 4 intolerable." 5 She urges that such an Def.'s Br. at 53. Stewart made the first statement at issue in front of 6 the courthouse on October 16, 2006, immediately after she was 7 originally sentenced to 28 months in prison. 8 J.A. 336a. 9 see Stewart I, 590 F.3d at 108 n.9, she said, in part, "Any Stewart II, at 61; As widely reported (and occasionally misreported), 10 regrets? I don't think anybody would say that going to jail for 11 two years is something you look forward to, but as my clients 5 "[T]he district court [is] required to resentence [a defendant] in light of the circumstances as they [stand] at the time of [her] resentencing." Werber v. United States, 149 F.3d 172, 178 (2d Cir. 1998); see also United States v. Bryce, 287 F.3d 249, 257 (2d Cir. 2002) ("A sentencing authority may justify an increased sentence by affirmatively identifying relevant conduct or events that occurred subsequent to the original sentencing proceeding." (internal quotation marks, alterations, and emphasis omitted)). This principle applies to mitigating considerations with equal force as it applies to aggravating ones. See Pepper v. United States, 131 S. Ct. 1229, 1241 (2011) ("In light of the federal sentencing framework described above, we think it clear that when a defendant's sentence has been set aside on appeal and his case remanded for resentencing, a district court may consider evidence of a defendant's rehabilitation since his prior sentencing and that such evidence may, in appropriate cases, support a downward variance from the advisory Guidelines range."). 11 1 have said to me, 'I can do that standing on my head.'"6 2 336a. 3 J.A. During her resentencing proceedings, Stewart 4 characterized these remarks as "intemperate at best," but 5 contended that they were taken out of context -- they were meant 6 to indicate only that she was relieved at being given a sentence 7 that was such a small fraction of her Guidelines sentence. 8 Stewart II, at 61. 9 "indicate[] that the defendant did indeed view the sentence as a But the district court understood them to 10 trivial sentence." 11 § 3553(a)(2)(A), the court explained that a sentence viewed as 12 trivial "would not be sufficient to reflect the seriousness of 13 the offense, promote respect for the law and provide just 14 punishment for the offense as required by law." 15 Id. Referring to the language of 18 U.S.C. Id. Stewart made the second statement during a November 18, 16 2009, television interview. 17 anything differently back then, if you knew what you knew today?" 18 She responded: 19 20 21 22 23 24 25 She was asked: "[W]ould you do I think I should have been a little more savvy that the government would come after me. But do anything differently? I don't -I'd like to think I would not do anything differently . . . . I made these decisions based on my understanding of what the client needed, what a lawyer was expected to do. 6 A video recording of the statement is available at http://www.youtube.com/watch?v=jVfQyfXsYmY at 4:31 (last visited June 26, 2012). 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 They say you can't distinguish zeal from criminal intent sometimes. I had no criminal intent whatsoever. This was a considered decision based on the needs of the client. And although some people have said press releases aren't client needs, I think keeping a person alive when they are in prison, held under the conditions which we now know to be torture[,] . . . totally held without any contact with the outside world except a phone call once a month to his family and to his lawyers, I think it was necessary. I would do it again. I might handle it a little differently, but I would do it again.7 J.A. 340-41 (emphasis added). 16 At her subsequent resentencing, Stewart explained that 17 when she said she would "do it again," "'it' has always been 18 about representing my clients with selfless . . . compassion, 19 putting their needs before my own. . . . 20 When the 'it' means compassionately represent my client, the 21 answer is, I would." 22 concluded that her statement "indicate[d] a lack of remorse for 23 conduct that was both illegal and potentially lethal," and 24 supported a finding "that the original sentence was not 25 sufficient to accomplish the purposes of section 3553(a)(2), 26 including to reflect the seriousness of the offense and to 27 provide adequate deterrence."8 Would I do it again? Stewart II, at 12-13. The district court Stewart II, at 62. 7 A video recording and transcript of the statement are available at http://www.democracynow.org/2009/11/18/exclusive_civil_rights_att orney_lynne_stewart at 24:33 (last visited June 26, 2012). 8 Stewart also points to an interview she gave to George Packer of The New York Times, which was referenced in the 13 1 Stewart argues that by taking these statements into 2 account in imposing her sentence, the district court violated her 3 constitutional right to freedom of speech. 4 scraps of First Amendment doctrine and dicta for support, she 5 contends that she was punished for what she said, and that such 6 punishment runs afoul of the First Amendment. 7 the district court's taking these statements into account for 8 that purpose will have a "chilling effect" on future public 9 statements on matters of public interest by others, and was Cobbling together She asserts that 10 therefore unconstitutional. She also urges us to adopt a rule 11 that would prohibit the district court from construing ambiguous 12 public statements on matters of public concern against a 13 defendant when sentencing her. 14 15 16 17 A. 18 district court from using her public statements on public issues 19 as a basis for punishing her. 20 as, in substance, punishment for her protected speech, which is 21 generally forbidden by the First Amendment. 22 punished for violating a governmental restriction on speech. Constitutionality of the District Court's Use of Stewart Statements in Sentencing Stewart asserts that the First Amendment forbade the She refers to the court's actions But Stewart was not The government's pre-sentencing submission. She alleges that this interview was used "to inflame the sentencing judge." Def.'s Br. at 65. The district court made no reference to this interview at sentencing. There is no indication in the record of proceedings in the district court that the court relied on it in resentencing Stewart, or was otherwise "inflame[d]" by its contents. 14 1 district court did not treat her speech as a violation of any law 2 -- it considered the content of that speech to be helpful in 3 enabling the court to craft a sentence "sufficient, but not 4 greater than necessary, to comply with the purposes set forth" 5 elsewhere in the statute. 6 include "to reflect the seriousness of the offense, to promote 7 respect for the law, and to provide just punishment for the 8 offense." 9 that assessment, not for unlawful speech, but for her crimes of 10 conviction: conspiracy to defraud the United States; conspiracy 11 to provide and to conceal the provision of material support to a 12 conspiracy to kill and kidnap persons in a foreign country; 13 providing and concealing the provision of material support to a 14 conspiracy to kill and kidnap persons in a foreign country; and 15 making false statements to agencies of the United States.9 16 18 U.S.C. § 3553(a). Id. at § 3553(a)(2)(a). These "purposes" She was punished, in light of We begin with several principles that are well-settled 17 or, we think, self-evident. First, a district court is required 18 to sentence a convicted defendant based in part on his or her 19 "history and personal characteristics." 20 Perez-Frias, 636 F.3d 39, 43 (2d Cir. 2011). 21 history and personal characteristics can often be assessed by a 9 See United States v. Second, a person's A rough analogy to a person who confesses to murder may be apt. That person may be punished for murder as a result of the contents of her truthful statement that she killed someone, but that is not punishment for the statement itself. 15 1 sentencing court only or principally through analysis of what 2 that person has said -- in public, in private, or before the 3 court. 4 citizens "the freedom of speech" from encroachments by federal or 5 state government. But, third, the First Amendment generally assures 6 There is an apparent tension between the first and 7 second principles, on the one hand, and the third principle on 8 the other. 9 made by Stewart here. It lies at the heart of the First Amendment argument For where, as here, a district court seeks 10 to assess a convicted defendant's history and personal 11 characteristics through consideration of his or her speech and 12 sentences in part based on the content of that speech, the court 13 may be portrayed as trenching upon the defendant's 14 constitutionally guaranteed fundamental right to speak her mind 15 on public questions. 16 We conclude, though, that irrespective of any such 17 limitation on Stewart's ability to speak as she wished, her First 18 Amendment rights were not abridged. 19 determining the characteristics of the defendant, which were 20 legally relevant to a determination of the appropriate sentence 21 to impose on Stewart, through the contents of statements she 22 voluntarily and publicly made. 23 erect a per se barrier' to the admission at sentencing of 24 evidence regarding the defendant's [otherwise protected beliefs, The sentencing judge was "The First Amendment 'does not 16 1 association, or speech]. A sentencing court may consider such 2 evidence so long as it is 'relevant to the issues involved' in 3 the sentencing proceeding." 4 142 (2d Cir. 2006) (per curiam) (quoting Dawson v. Delaware, 503 5 U.S. 159, 164-65 (1992)).10 6 U.S.C. § 3553(a)'s broad constellation of factors to be assessed 7 in the course of imposing sentence as permitting review of the 8 defendant's public statements indicating that she considered her 9 sentence to be trivial, or exhibiting a lack of remorse, does not 10 violate her right to speak under First Amendment principles as we 11 understand them.11 United States v. Kane, 452 F.3d 140, The district court's reading of 18 10 Although each court to have addressed this issue frames the "test" in a somewhat different manner, the touchstone is "relevance." See, e.g., United States v. Simkanin, 420 F.3d 397, 417-18 (5th Cir. 2005) ("Simkanin's beliefs and associations may be considered if they were sufficiently related to the issues at sentencing." (internal quotation marks omitted)); Kapadia v. Tally, 229 F.3d 641, 648 (7th Cir. 2000) ("Nothing in the Constitution prevents the sentencing court from factoring a defendant's statements into sentencing when those statements are relevant to the crime or to legitimate sentencing considerations."); United States v. Curtin, 489 F.3d 935, 953-54 (9th Cir. 2007) (en banc) ("[T]he Supreme Court has held on many occasions in other contexts that opinions and other information that otherwise might be entitled to First Amendment protection are not immune from discovery and use as evidence in court, as long as they are relevant to an issue in a given case."). 11 Sentences are not governmental regulations. The case law does not require courts to scrutinize them, as they ordinarily would statutory or regulatory restraints on speech, to ensure that any incursion on the freedom to speak is "narrowly tailored" to address a specific, articulable, and compelling governmental interest. See Brown v. Entm't Merchs. Ass'n, 131 S. Ct. 2729, 2738 (2011); see also Ariz. Free Enter. Club's Freedom Club PAC v. Bennett, 131 S. Ct. 2806, 2817 (2011) ("[S]trict 17 1 In Kane we addressed an argument similar to Stewart's. 2 There, the defendant claimed that the sentencing court violated 3 the First Amendment by "weighing [the defendant's] prior 4 published writings against the mitigating character evidence he 5 offered at sentencing." 6 to a scheme to defraud the Federal Housing Administration and 7 Department of Housing and Urban Development. 8 request for a probationary sentence, Kane submitted letters 9 testifying to his good character. 452 F.3d at 141. Kane had pled guilty In support of his The government, in response, 10 submitted excerpts of books Kane had written that explained, 11 among other things, how to manipulate financial records in order 12 to receive housing subsidies. Id. at 142. 13 We observed: 14 15 16 17 18 19 20 [Although] the government may not offer proof of a defendant's abstract beliefs merely for the purpose of demonstrating that those beliefs, and by extension the defendant, are morally reprehensible . . . [h]ere, the District Court considered Kane's writings only to the extent that they rebutted his scrutiny . . . requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest." (internal quotation marks omitted)). We need not decide whether strict, intermediate, or some other level of scrutiny would apply if Stewart were challenging a government regulation here. "Deciding whether a particular regulation is content based or content neutral is not always a simple task. . . . As a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content based." Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, 642-643 (1994). 18 1 2 3 mitigating evidence. The First Amendment does not bar the government from putting the lie to a defendant's proof at sentencing. 4 Id. at 143 (internal quotation marks omitted). "[B]ecause much 5 of Kane's writings concerned illegal real estate schemes, which 6 related directly to his offense of conviction, the writings also 7 may indicate the increased likelihood of recidivism or a lack of 8 recognition of the gravity of the wrong." 9 quotation marks omitted). Id. (internal In United States v. Bangert, 645 F.2d 1297 (8th Cir. 10 11 1981), the circuit court examined the sentences of two 12 individuals who had been convicted of theft and destruction of 13 government property for stealing a United States flag from a 14 flagpole on a federal building and later burning it "to protest 15 involvement of the United States in the internal affairs of 16 Iran." 17 sentence -- one year's imprisonment and a $1,000 fine. 18 1306. 19 Id. at 1300. Both defendants received the maximum Id. at The court explained that "[c]onsideration of political 20 beliefs, as distinguished from criminal activity, would clearly 21 be impermissible in determining defendants' sentences, because it 22 would impair the rights of the defendants under the First 23 Amendment, protecting public expression of their political 24 beliefs, by words and symbols." 25 however, the district court was explicit: Id. at 1308. 19 In that case, 1 2 3 4 5 6 7 8 9 10 11 [The defendants'] sentence . . . has nothing to do with [their] political beliefs or [their] membership in whatever organizations [they] belong to or the fact that [they] were expressing [them]selves in a peaceful demonstration[.] And [they] are surely not being sentenced because of [one of the defendant's], at least, feeling about the Vietnam War, because certainly any thinking person, from time to time, has doubts about actions that may have been taken. 12 Id. The circuit court concluded that the district court had not 13 rested its sentencing decision on the defendants' speech, but 14 instead upon the defendants' "lack of truthfulness and lack of 15 remorse." Id. (emphasis added).12 12 Courts have also denied challenges akin to Stewart's, based on a court taking into account statements (albeit ones made in court) questioning the illegality of the crimes of conviction. See Simkanin, 420 F.3d at 417-18 (concluding that it was proper to consider in sentencing the defendant's "specific beliefs that the tax laws are invalid and do not require him to withhold taxes or file returns (and his association with an organization that endorses the view that free persons are not required to pay income taxes on their wages) [because they are] directly related to the crimes in question and demonstrate a likelihood of recidivism"); see also United States v. Bone, 433 F. App'x 831, 835 (11th Cir. 2011) (rejecting challenge to the denial of a downward variance when defendant filed a "notice and declaration of certificate of sovereign status" and asked for immediate release where the district court "reasoned that the statements were evidence of Bone's refusal to accept responsibility for his acts, his unpreparedness to return to society, the danger to himself and to others of returning him to society, and his lack of respect for the law. These points are proper sentencing considerations . . . ."); United States v. Smith, 424 F.3d 992, 1016 (9th Cir. 2005) (rejecting a defendant's arguments that the First Amendment prevented the court from considering in sentencing his diatribe on the court's "lack of jurisdiction" and contesting the existence of the United States because "the district court made it clear that it was increasing the sentence based on [the defendant's] lack of remorse [which is a] legitimate sentencing factor[]"). 20 In United States v. Lemon, 723 F.2d 922 (D.C. Cir. 1 2 1983), relied upon by Stewart, the Court of Appeals for the D.C. 3 Circuit explained, in a manner echoed by the views we later 4 expressed in Kane and United States v. Fell, 531 F.3d 197 (2d 5 Cir. 2008), that "a court may not punish an individual by 6 imposing a heavier sentence for the exercise of first amendment 7 rights. . . . 8 beliefs protected by the first amendment is constitutionally 9 invalid." 10 A sentence based to any degree on activity or Lemon, 723 F.2d at 937-38.13 The court overturned the defendant's sentence because 11 the prosecution did "little more than . . . attempt to establish 12 guilt by association through an accumulation of uncorroborated 13 suspicions. 14 government [was able to] demonstrate a single direct link between 15 the defendant and illegal activity by known members of [the It [did] not appear from the record that the 13 The Lemon court considered the role a defendant's association with a group called the Black Hebrews could play in sentencing. All parties agreed that the Black Hebrews was a religious organization, but the government argued that the group was also involved in illegal activities, and therefore the defendant could be punished for assisting the group in furthering those activities. The court concluded that "the first amendment proscribes punishment of an individual for membership in a protected organization unless the organization has illegal aims and the individual intends to further those aims." Id. at 93940. "[M]ere membership would be an impermissible factor in sentencing. . . . [T]here must be sufficiently reliable evidence of the defendant's connection to illegal activity within the Black Hebrews to insure that he is not being given a harsher sentence for mere association with the group and its legitimate aims and activities." Id. 21 1 organization of which the defendant was a member]." 2 The court thus identified a First Amendment violation. 3 explicitly acknowledged (albeit necessarily in dicta) that the 4 defendant's otherwise protected association could have been 5 considered in sentencing if that association was specifically 6 tied to illegal aims. 7 barred from considering what it might have otherwise legitimately 8 considered -- the defendant's support for illegal activity -- 9 solely because that support might have been related to beliefs or 10 Id. at 941. But it In other words, the district court was not association otherwise protected by the First Amendment. 11 We again emphasize the complete bar on the use of 12 protected speech, belief, or association at sentencing for the 13 purpose of punishment based on the feature that warrants its 14 First Amendment protection. 15 defendant more harshly based on associations that do not relate 16 to specific criminal wrongdoing, for example, or for beliefs that 17 some might find morally reprehensible, or for critical statements 18 made in public because they were made in public.14 It is impermissible to sentence a 14 While "[t]he The "rule" set out here turns on a factual inquiry into the purposes for which what might be considered protected speech or conduct is used at sentencing. But such ad hoc inquiries are not uncommon when dealing with discretionary action in the First Amendment context. See, e.g., FCC v. Pacifica Found., 438 U.S. 726, 746 (1978) ("If there were any reason to believe that the Commission's characterization of the Carlin monologue as offensive could be traced to its political content - or even to the fact that it satirized contemporary attitudes about four-letter words - First Amendment protection might be required. But that is simply not this case."). 22 1 First Amendment forbids the uncabined reliance on a defendant's 2 'abstract beliefs' at sentencing . . . the government may 3 introduce evidence of beliefs or associational activities, so 4 long as they are relevant to prove [permissible sentencing 5 factors, such as] motive or aggravating circumstances, to 6 illustrate future dangerousness, or to rebut mitigating 7 evidence." 8 Brown, 479 F.2d 1170, 1174 (2d Cir. 1973) ("[B]as[ing] [a] 9 sentence on . . . revulsion arising out of [a defendant's] social 10 or political views . . . would be improper."); Bangert, 645 F.2d 11 at 1308 (similar).15 12 Fell, 531 F.3d at 228; see also United States v. Stewart does indeed argue that she was prosecuted and 13 punished for her political beliefs. 14 fatal -- shortcoming in Stewart's argument in the context of this 15 appeal is that there is not a hint in the record of any fact to 16 support an assertion that the district court did so. 17 parenthetically, at a loss to understand why Stewart thinks that 18 the district judge's views of her politics changed drastically 15 The most obvious -- and And we are, An extreme version of Stewart's argument was made by the defendant in United States v. Tapanes, 284 F. App'x 617 (11th Cir. 2008). There, the defendant, during the course of a boat chase, made an obscene gesture directed to the United States Coast Guard officials in pursuit. Over a First Amendment objection, the court found no error in considering the gesture in sentencing because it "was relevant to [the defendant's] sentencing [as it] reflected upon [the defendant's] history and characteristics, and, specifically, [his] lack of respect for the law . . . ." Id. at 621. 23 1 for the worse between 2006, when he gave her a sentence so light 2 compared with her Guidelines sentence that she expressed her 3 profound relief (as reflected in her public "I can do that 4 standing on my head" comment), and 2010, when the court imposed 5 the higher sentence, still one-third of the Guidelines minimum, 6 of which she now complains. 7 about whether she considered her previous sentence to have been 8 "trivial," and whether she had remorse for her acts adjudged to 9 be serious crimes, not about any political views of hers that may The court was properly concerned 10 or may not have played a part in her commission of the crime or 11 her reaction to her conviction and sentence. 12 Finally, underlying Stewart's argument is the 13 suggestion that her sentence was set at a higher level 14 principally because of her public statements. 15 of that assertion is questionable -- it is not clear why a 16 considerable increase in sentence based entirely on the 17 defendant's lack of remorse and her consideration of a lower 18 sentence as "trivial" would be improper. 19 suggestion is false. 20 direction that the district court would apply the terrorism 21 enhancement, determine whether the abuse-of-trust and 22 obstruction-of-justice enhancements applied, and "consider the 23 overall question whether the sentence to be given is appropriate 24 in view of the magnitude of the offense." The significance But in any event, the In Stewart I, we remanded with the explicit 24 Stewart I, 590 F.3d at 1 151. The district court was permitted to consider Stewart's lack 2 of remorse and view of the seriousness of her previous sentence 3 in arriving at an appropriate new sentence pursuant to 4 section 3553(a), as we have explained, but the increase in her 5 sentence was based on consideration of myriad other factors not 6 properly or fully addressed at her previous sentencing. 7 42 pages of transcript containing the district court's 8 resentencing and its statements of the reasons therefor, barely 9 more than a page, Stewart II at 61-62, is devoted to a discussion Of the 10 of the speech at issue here and its consequences for sentencing 11 purposes. 12 B. 13 The "Chilling Effect" Stewart argues that her statements at issue were on 14 matters of "public concern," Def.'s Br. at 58 & n.15, and "speech 15 on matters of public concern is at the heart of the First 16 Amendment's protection." 17 (2011) (internal quotation marks and alterations omitted). 18 Because of the public's interest in defendants speaking out in 19 the manner in which Stewart did, the Court should be wary of 20 stifling similar speech, which, she argues, would be the result 21 of allowing the stiffer sentence she received here to stand. 22 make this point, she relies upon related First Amendment 23 jurisprudence. 24 Puche, 551 F.2d 910 (2d Cir. 1977), a case in which we held that Snyder v. Phelps, 131 S. Ct. 1207, 1215 To She cites, for example, Hotchner v. Castillo- 25 1 the plaintiff in a defamation and invasion of privacy suit had 2 failed to establish "actual malice," for the assertion that 3 "[a]ny risk that full and vigorous exposition and expression of 4 opinion on matters of public interest may be stifled must be 5 given great weight. 6 considerations, it is thought better to err on the side of free 7 speech." 8 Stewart asserts, the use of her statements as a basis for 9 increasing her sentence will deter future speech by others. In areas of doubt and conflicting Id. at 913; see also Def.'s Reply Br. at 8-9.16 And, 10 Indeed it is easy to imagine that sometime in the future at least 11 one lawyer will use the story of Stewart's resentencing as an 12 object lesson as to the kind of statements his or her client 13 should avoid making while awaiting sentencing, thus "chilling" 14 that person's speech. 15 16 As we have noted, though, if the question before us were permissibility of a statute or other governmental regulation 16 She might better have referred to Justice O'Connor's opinion for the Supreme Court in Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986). There, the Court concluded that under the First Amendment, plaintiffs must bear the burden of falsity in defamation suits about matters of public interest "[t]o ensure that true speech on matters of public concern is not deterred." Id. at 776. "Because such a 'chilling' effect would be antithetical to the First Amendment's protection of true speech on matters of public concern, we believe that a private-figure plaintiff must bear the burden of showing that the speech at issue is false before recovering damages for defamation from a media defendant. To do otherwise could only result in a deterrence of speech which the Constitution makes free." Id. at 777 (internal quotation marks omitted). 26 1 under which Stewart's speech had indeed been punished, "strict 2 scrutiny" might well be applicable, see supra note 11, and the 3 deterrent -- "chilling" -- effect of the restriction might 4 require our careful consideration. 5 however, and Stewart's repeated cries of "chilling effect" 6 therefore avail her little.17 7 That is not this case, Although employed by courts for more than fifty 8 years,18 the term "chilling effect" is hardly precise. 9 ordinarily seems to refer to the deterrent effect an overbroad 10 statute or government regulation (including the availability of 11 civil cause of a action) may have on speech because the mere 12 possibility that the statute or regulation may be employed 13 against some future protected speech might deter individuals from 14 making such protected statements. 15 U.S. 479, 486-87 (1965). It See Dombroski v. Pfister, 380 "The chilling effect upon the exercise 17 The analogy to a hypothetical person who confesses to murder, to which we have adverted, may be appropriate. See supra note 9. Punishment of such a person for murder may well deter ("chill") future speech in the form of confessions -- public or private -- but it hardly follows that punishment for the murder is a violation of her First Amendment right to speak truthfully about the crime, a matter of undoubted public interest. 18 A Lexis search indicates that the term was first employed by the Supreme Court in Times Film Corp. v. City of Chicago, 365 U.S. 43, 74 n.11 (1961) (quoting Paul A. Freund, The Supreme Court and Civil Liberties, 4 Vand. L. Rev. 533, 539 (1951)), although the underlying principle seems to have been identified at least as early as Justice Frankfurter's concurring opinion in Wieman v. Updegraff, 344 U.S. 183, 195 (1952) (Frankfurter, J., concurring). 27 1 of First Amendment rights may derive from the fact of the 2 prosecution [based on such a restriction], unaffected by the 3 prospects of its success or failure." 4 Id. at 487. Professor Schauer offered a "tentative definition" of 5 the term: "A chilling effect occurs when individuals seeking to 6 engage in activity protected by the first amendment are deterred 7 from so doing by governmental regulation not specifically 8 directed at that protected activity." 9 Risk and the First Amendment: Unraveling the "Chilling Effect", Frederick Schauer, Fear, 10 58 B.U. L. Rev. 685, 693 (1978) (emphasis omitted). 11 an example "a statute which is directed at hard-core pornography 12 [that] has the actual effect of deterring an individual from 13 publishing the Decameron or Lady Chatterly's Lover." 14 15 He used as Id. There is no such "governmental regulation" of speech at issue here,19 nor is there the prosecution of a civil suit based 19 Stewart does not argue that she was prosecuted (as opposed to sentenced) for engaging in speech protected by the First Amendment. Nor does she point to anything reasonably resembling a "governmental regulation" that allowed the district court improperly to consider the contents of her public speech. To do that, she would have had to attack section 3553 on the basis that it is unconstitutional because it permits inquiry based on a defendant's public speech of public interest. She has not done so. This is not to say that no such argument is possible. It has been asserted in the academy that there are First Amendment objections to factoring a defendant's remorse into a sentence at all, under section 3553 or otherwise, even when it is based on in-court statements or failure to make an appropriate such statement. See Carissa Byrne Hessick & F. Andrew Hessick, Recognizing Constitutional Rights at Sentencing, 99 Cal. L. Rev. 28 1 on such a restriction. 2 descriptively by Stewart does not appear to fall within the 3 meaning of "chilling effect" as it has historically been used by 4 the courts. 5 Thus the term "chilling effect" as used It is not the law that any action by an agent of 6 government that has a collateral deterrent effect on protected 7 speech ipso facto violates the First Amendment. 8 authority for the general proposition that underlies Stewart's 9 argument: that the government cannot use the contents of There is no 10 voluntary public speech to the speaker's disadvantage despite the 11 likelihood that someone will subsequently think twice about 12 making a similar public statement. 47, 66-71 (2011). But that is not the law of this Circuit -evidence of lack of remorse is regularly used in imposing sentence. See Watkins, 667 F.3d at 260; United States v. Martinucci, 561 F.3d 533, 535 (2d Cir. 2009) (per curiam); see also United States v. Barresi, 316 F.3d 69, 75 (2d Cir. 2002) (assuming that "lack of remorse" can properly be used as a basis for an upward departure from a Guidelines sentence, but concluding that there was an "absence of any grounds in the record that could persuasively warrant [such a] finding."). As noted, she has in any event not made this argument. Neither are we aware of any defendant who has attacked section 3553, successfully or otherwise, on the basis that its chilling effects on speech require First Amendment scrutiny. This is not surprising. "Nearly all the ways that defendants speak in court are heavily regulated and potentially punishable without raising First Amendment claims." Alexandra Natapoff, Speechless: The Silencing of Criminal Defendants, 80 N.Y.U. L. Rev. 1449, 1484 (2005). While Stewart is, of course, challenging the use of her out-of-court statements at sentencing, the court took them into account in the same manner as it would have been entitled to had she expressed the same lack of remorse in testimony or otherwise in court. 29 1 C. The Ambiguity of Stewart's Statements 2 Stewart makes a related argument to the effect that the 3 district court was forbidden to interpret her statements as it 4 did -- to indicate a lack of remorse and her view that the 5 sentence she received was trivial -- in light of her alternative 6 explanations as to the meaning of those statements. 7 of the importance of free speech, Ms. Stewart is certainly 8 entitled to the benefit of the doubt where there are two 9 conflicting views or interpretations of what she said. "[B]ecause Under the 10 First Amendment, any ambiguities must be resolved in favor of 11 sustaining the protected speech." Def.'s Br. at 75. 12 Assuming the statements were ambiguous -- a 13 questionable proposition, especially with regard to the meaning 14 of the statement "I would do it again" -- we know of no law or 15 legal principle to support a conclusion that the district court 16 was not permitted to use its informed best judgment in 17 determining whether the speech in question disclosed that Stewart 18 considered a 28-month sentence "trivial," or demonstrated a lack 19 of remorse for the crimes she committed -- clearly a factor that 20 the court was permitted to take into account in sentencing. 21 e.g., Martinucci, 561 F.3d at 535; United States v. Fernandez, 22 443 F.3d 19, 33 (2d Cir. 2006).20 20 See, As we have noted, Stewart does not contend that section 3553 is unconstitutional. See supra note 19. Neither does she argue that under the particular circumstances of her sentence, 30 1 Wide latitude is afforded to sentencing courts in 2 crafting sentences "sufficient, but not greater than necessary" 3 to achieve the sentencing objectives set forth by Congress. 4 18 U.S.C. § 3553(a); see 18 U.S.C. § 3553(a)(2)(A)-(B) ("[The 5 district court] shall consider the need for the sentence imposed lack of remorse should not be a factor because it usually relates to concerns about recidivism and rehabilitation, neither of which may be seriously at issue in her case in light of her age and disbarment, as the district court noted. Stewart II, at 65, 68. Instead she asserts that the statement in question does not evidence lack of remorse. See Def.'s Br. at 73-75; Stewart II, at 12-13. The district court's view was that "[t]hese statements indicate that the original sentence was not sufficient to accomplish the purposes of section 3553(a)(2), including to reflect the seriousness of the offense and to provide adequate deterrence." Stewart II, at 62. The court was apparently referring to general deterrence, in light of its remarks regarding the very limited potential for recidivism on Stewart's part. We think that these reasons were sufficient and proper. See Fernandez, 443 F.3d at 33 ("Section 3553(a)(1) . . . is worded broadly, and it contains no express limitations as to what 'history and characteristics of the defendant' are relevant."). To be sure, there is room for debate on the function that consideration of remorse serves when recidivism or rehabilitation are not at issue, or if it is effective in addressing those goals. Compare Bryan H. Ward, Sentencing without Remorse, 38 Loy. U. Chi. L.J. 131, 140 (2006) ("[C]ourts rely on remorse simply because, historically, courts always have."), with Stephanos Bibas & Richard A. Bierschbach, Integrating Remorse and Apology into Criminal Procedure, 114 Yale L.J. 85, 125 (2004) ("The values served by remorse and apology should be more integral parts of the process of prosecution and punishment. For the criminal law to regulate society effectively and morally educate, it must serve the values of remorse and apology in addition to deterring crimes, inflicting retribution, and protecting defendants' rights."). Inasmuch as the issue has not been raised on this appeal, we have no cause to engage in that debate. 31 1 to reflect the seriousness of the offense, to promote respect for 2 the law, and to provide just punishment for the offense [and] 3 afford adequate deterrence to criminal conduct."). 4 limitation [is permitted] on the information concerning the 5 background, character, and conduct of a person convicted of an 6 offense which a court of the United States may receive and 7 consider for the purpose of imposing an appropriate sentence." 8 18 U.S.C. § 3661. 9 And "[n]o The district court acknowledged this latitude in 10 rejecting Stewart's argument that the First Amendment barred 11 consideration of her post-sentencing statements. 12 can take into account, for purposes of sentencing, the truth of 13 the defendant's comments about the sentence and the degree of her 14 remorse in the way that courts allow defendants to speak at 15 sentencing and consider those statements." 16 Were we to read the Constitution to prohibit the consideration of 17 a defendant's statements solely because they were only arguably 18 unfavorable to the defendant's position, as Stewart urges, we 19 would take away from the district court the ability fully to 20 assess facts bearing on the defendant's state of mind in 21 accordance with the requirements of section 3553, which enables 22 the court to impose a sentence fair to both the defendant and 23 society. "[T]he Court Stewart II, at 62. We have been given no sound reason to do so. 32 1 III. Obstruction-of-Justice Enhancement 2 Stewart also argues that the district court erred in 3 applying the obstruction-of-justice enhancement. 4 allow for such a two-level enhancement if "the defendant 5 willfully obstructed or impeded, or attempted to obstruct or 6 impede, the administration of justice with respect to the 7 investigation, prosecution, or sentencing of the instant offense 8 of conviction." 9 enhancement, "a sentencing court must find that the defendant 1) U.S.S.G. § 3C1.1. The Guidelines In order to impose the 10 willfully 2) and materially 3) committed perjury, which is (a) 11 the intentional (b) giving of false testimony (c) as to a 12 material matter." 13 Cir. 1997). 14 [commits perjury] if she gives false testimony concerning a 15 material matter with the willful intent to provide false 16 testimony, rather than as a result of confusion, mistake, or 17 faulty memory." 18 (1993). 19 United States v. Zagari, 111 F.3d 307, 329 (2d "A witness testifying under oath or affirmation United States v. Dunnigan, 507 U.S. 87, 94 The district court must find each of the elements to be 20 present by a preponderance of the evidence. 21 Salim, 549 F.3d 67, 75 (2d Cir. 2008). 22 fact that, for example, a statement was intentional or false, 23 must be upheld unless clearly erroneous. 33 See United States v. The court's findings of Id. at 74. 1 The district court outlined in detail seven statements 2 that it concluded constituted perjury and warranted the 3 obstruction-of-justice enhancement. 4 categories: A) that Stewart believed, notwithstanding the literal 5 language of the SAMs, that she was allowed to take the actions 6 that she did; B) that she did not participate in a conspiracy 7 with her co-defendants; and C) that she did not know the identity 8 of Rifa'i Taha Musa ("Taha"), also known as "Abu Yasir," "a 9 military leader of al-Gama'a, a follower of Abdel Rahman, and an They fall into three general 10 unindicted co-conspirator," Stewart I, 590 F.3d at 103. 11 A. 12 The SAMs The first category of statements that the district 13 court concluded were perjurious and warranted the enhancement 14 related to Stewart's "assertion that she believed that she was 15 complying with the SAMs because the attorneys operated in a 16 'bubble' and that, consequently, she did not violate the SAMs or 17 sign the false affirmation." 18 statements supported the district court's finding: "that it was 19 understood by the United States Attorney's Office and Abdel 20 Rahman's attorneys that the SAMs contained a 'bubble' which 21 permitted Abdel Rahman's attorneys to issue press releases 22 containing Abdel Rahman's statements as part of their 23 representation of him"; "that she kept her 'promise to abide by 24 the plain language of the SAMs' and that she did not believe that Stewart II, at 45. 34 Four specific 1 she violated 'the SAMs or the language of the SAMs'"; "that she 2 did not believe that she violated any 'command' or restriction of 3 the United States of America"; and "that she never signed a false 4 affirmation." 5 omitted). 6 Id. at 45-46 (citations to trial transcript Stewart contends on appeal that because her issuance of 7 press releases and her making of other statements to the public 8 relaying Abdel Rahman's statements were incidental to her 9 "effective representation" of Abdel Rahman, they were allowed 10 "notwithstanding the language" of the SAMs. 11 She asserts that she did not believe the literal language of the 12 SAMs was binding because her co-counsel Ramsey Clark and Abdeen 13 Jabara were "openly and notoriously" violating the SAMs, and had 14 not been subject to repercussions for their violations. 15 81-82. 16 buttressed by the fact that, after her 2000 statement to Reuters, 17 the government continued to allow her to visit Abdel Rahman. 18 at 83. 19 Def.'s Br. at 81. Id. at In addition, Stewart contends that her view was Id. Stewart does not assert that her actions were allowed 20 by the literal language of the SAMs. 21 instead that at the time she took actions in literal violation of 22 the SAMs, a kind of "estoppel" applied, and that as a result, she 23 could not be prosecuted for taking them. 35 They were not. She argues Therefore, she argues, 1 her statements to that effect were not false, and cannot support 2 the obstruction-of-justice enhancement. 3 As the district court explained, Stewart's actions 4 belied this argument. She repeatedly exhibited behavior 5 demonstrating that she understood her actions to be in violation 6 of the law and that she could face consequences, including 7 criminal prosecution, as a result of them. 8 "covering noises while the messages were read or responses by 9 Sheikh Rahman were dictated"; during the May 2000 prison visit 10 she and Yousry acknowledged they would be "in trouble" if the 11 guards discovered they were reading messages from Taha to Abdel 12 Rahman, and upon their return for a second visit in May 2000 left 13 a similar message in the car for fear of them being searched and 14 it being discovered; she acknowledged when speaking to Reuters 15 that the statement might cause her to be banned from visiting her 16 client; and she told Yousry she was "risking her whole career" by 17 issuing the press release. 18 receiving a letter from then-Assistant United States Attorney 19 Patrick Fitzgerald informing her that her actions in publicly 20 disclosing Abdel Rahman's withdrawal from the ceasefire were in 21 violation of the SAMs, Stewart signed another affirmation 22 agreeing to abide by them. 23 violated the SAMs. For example, she made Stewart II, at 46-47. After In July 2001, she nonetheless again Id. at 48. 36 1 In light of these facts, the failure of the government 2 to seek to prosecute Clark and Jabara has little relevance to the 3 question whether Stewart is being punished inappropriately for 4 violation of the SAMs. 5 points to, such as Clark's 1997 issuance of a press release 6 expressing Abdel Rahman's support for the ceasefire, took place 7 before the SAMs prohibited such actions. 8 indeed refuse to issue any public statement from Abdel Rahman 9 withdrawing his support for the ceasefire. And some of their actions that Stewart Clark and Jabara did See Stewart I, 590 10 F.3d at 105. 11 actions went further than those of either Messrs. Clark or Jabara 12 by publicizing withdrawal from the ceasefire." 13 48. 14 As the district court explained, "the defendant's Stewart II, at Finally, the district court concluded that Stewart had 15 testified falsely when she said she had not signed false 16 affirmations pledging to abide by the SAMs. 17 type that is inconsistent with a jury's finding, as it was here, 18 can support an obstruction-of-justice enhancement. 19 States v. Bonds, 933 F.2d 152, 155 (2d Cir. 1991) (per curiam) 20 (concluding that the jury finding the defendant acted with 21 knowledge contradicted his factual assertion that he had not done 22 so), superseded on other grounds by regulation as recognized in 23 United States v. Castano, 999 F.2d 615, 617 & n.2 (2d Cir. 1993) 24 (per curiam). 37 A statement of this See United 1 The district court considered Stewart's arguments and 2 evidence to the effect that the statements it identified were not 3 false because she genuinely harbored the belief that her conduct 4 was not in violation of the SAMs, even if it was literally 5 prohibited by them. 6 of the evidence that her statements were false based largely on 7 her contemporaneous statements and actions demonstrating her 8 understanding that she was engaged in illegal activity, and the 9 jury's finding that she acted with knowledge. The district court found by a preponderance 10 the record to the contrary. 11 not "clearly erroneous." 12 B. We see nothing in The district court's findings were Conspiracy 13 The district court also decided that the 14 obstruction-of-justice enhancement was justified by Stewart's 15 statements "that she did not believe that she 'conspired with 16 anyone to defraud the United States of America, the Department of 17 Justice and the Bureau of Prisons out of its right to have the 18 SAMs applied and enforced,'" and "that she did not 'believe that 19 there was a conspiracy that involved Mr. Sattar or this fellow 20 Taha and others to kill or kidnap people in a foreign country' 21 and did not make 'Abdel Rahman available to any conspiracy to 22 kill or kidnap people.'" 23 the district court concluded, "were necessarily inconsistent with 24 the jury's finding of guilt and were false testimony concerning Stewart II, at 49. 38 These statements, 1 material matters that cannot be ascribed to mistake, inadvertence 2 or faulty memory." Id. 3 Stewart argues that these statements cannot support an 4 obstruction-of-justice enhancement because they were expressions 5 of opinion as to her guilt or innocence -- before she was in fact 6 found guilty or acquitted of anything. 7 obstruction-of-justice enhancement would have been in error had 8 she done no more than proclaim herself "not guilty." 9 United States v. Scop, 940 F.2d 1004, 1012 (7th Cir. 1991) To be sure, an See, e.g., 10 ("Statements relating to one's own guilt, prior to conviction, 11 are considered statements of opinion and cannot be perjurious."); 12 United States v. Endo, 635 F.2d 321, 323 (4th Cir. 1980) ("[A] 13 [c]onviction for perjury cannot be sustained solely because the 14 defendant gave inconsistent answers to the question, 'are you 15 guilty?' 16 fact or facts and the statement must be such that the truth or 17 falsity of it is susceptible of proof." (internal quotation marks 18 and alteration omitted)). 19 however, limited to a denial of guilt - they were directly 20 related to specific underlying conduct: 21 or participation in the conspiracy. 22 contrary that she knowingly participated in it. 23 24 To be false, the statement must be with respect to a Stewart's statements were not, She denied knowledge of The jury found to the In Bonds, 933 F.2d at 155, we concluded that a defendant who testified that he did not know that money he 39 1 distributed was counterfeit could be found to have committed 2 perjury based on a subsequent jury conviction for that crime. 3 4 5 6 7 8 9 10 11 12 [B]y finding [the defendant] guilty of knowingly distributing counterfeit money, the jury necessarily determined that [he] knew that the money he had distributed was counterfeit -- that is, unless the jury's verdict was unsupported by the evidence, in which case, of course, the remedy would be to reverse [his] conviction, not simply to disallow the two-level upgrade in sentencing. Id. (emphasis omitted). Here, as in Bonds, the jury's findings of guilt on 13 14 Count One, charging conspiracy to defraud the United States, and 15 Counts Four and Five, charging material support of terrorism, 16 each required the jury to find that Stewart's actions were 17 undertaken knowingly. 18 Stewart's factual testimony to the effect that she did not engage 19 in this conduct, or at least did not do so knowingly. 20 court's decision on this score was not clearly erroneous. 21 C. 22 The jury's findings contradicted The Taha The district court also concluded that Stewart's 23 testimony that between 1996 and 2000 she did not know the name 24 "Taha," and that during the May 2000 prison visit she did not 25 know who "Abu Yasir" was, supported the obstruction-of-justice 26 enhancement. 27 district court noted that Stewart testified that she had seen the 28 name Taha in an article in connection with her representation of Stewart II, at 50. 40 In making this finding, the 1 another defendant prior to 2000, but had filed the article away 2 and forgotten about it. 3 arranged before her May 2000 visit to Abdel Rahman for 4 translation of an article explaining that Taha and Abu Yasir were 5 one and the same, and describing Taha's role in the Egyptian 6 Islamic movement. 7 translated all correspondence and documents that would be 8 provided to Abdel Rahman in advance of each visit, as well as 9 after each visit, all correspondence dictated by Abdel Rahman. Id. Id. Stewart acknowledged having Stewart also acknowledged that Yousry 10 During the May 2000 visit, Yousry read a statement from Abu Yasir 11 identifying him as a leadership member of the militant group, and 12 describing him as someone with "massive weight" who "the regime 13 worries about" to the extent it worries about anyone. 14 One newspaper article that Stewart approved for reading to Abdel 15 Rahman contained belligerent statements by Taha and explained who 16 he was; another said that he was also known as Abu Yasir. 17 Stewart also acknowledged having read an article, which she later 18 sent to Sattar and Yousry, that described a videotape made by 19 Osama bin Laden, Ayman al-Zawahiri, and Taha calling for the 20 release of Abdel Rahman. 21 Id. at 51. Id. Based on this evidence, the district court rejected 22 Stewart's assertion that she did not remember who Taha was 23 because she was a "busy lawyer." 24 were numerous enough and significant enough that her testimony 41 Id. "[T]he references to Taha 1 that she had not heard of Taha until the trial" constituted 2 perjury sufficient to warrant the obstruction-of-justice 3 enhancement, as were her statements "that she did not know who 4 Abut Yasir was at the time of the May 2000 prison visit and that 5 the name had no meaning for her." 6 Id. at 51-52. Stewart argues on appeal that "[n]owhere in the 7 hundreds of hours of recordings or in any of the documents 8 admitted at trial is there any direct evidence that Ms. Stewart 9 knew Taha's connection to [al-Gama'a or] that anyone ever spoke 10 of him and his role in English in Ms. Stewart's presence." 11 Def.'s Br. at 94. 12 for reading to Abdel Rahman, but contends those articles were 13 subject only to her "cursory review," and in some instances were 14 not given her prior approval at all. 15 course, in applying the enhancement, the "district court [was] 16 entitled to rely on circumstantial evidence and on all reasonable 17 inferences that may be drawn from all of the evidence." 18 States v. Khedr, 343 F.3d 96, 102 (2d Cir. 2003). 19 She acknowledges that she approved articles Def.'s Br. at 95-97. Of United The district court's conclusion that Stewart must have 20 known who Taha was, and that his alias was Abu Yasir, finds 21 sufficient support in the record. 22 specific instances in which Stewart was known to have approved 23 messages or articles containing information about Taha. 24 unlikely that Stewart was unaware of the existence and identity 42 The district court noted the It seems 1 of a person -- Taha -- who had appeared on a videotape with bin 2 Laden and al-Zawahiri to demand Abdel Rahman's release. 3 a key figure in the events unfolding in Egypt to which Abdel 4 Rahman was a central player, and Taha was in direct contact with 5 Stewart's co-defendant Ahmed Abdel Sattar. 6 district court's finding by a preponderance of the evidence that 7 Stewart's statements denying knowledge of Taha were false was not 8 clearly erroneous. 9 10 IV. Taha was We conclude that the Abuse-of-Trust Enhancement Stewart objects to the district court's imposition of 11 the abuse-of-trust enhancement, which applies "[i]f the defendant 12 abused a position of public or private trust . . . in a manner 13 that significantly facilitated the commission or concealment of 14 the offense." 15 enhancement turns on the extent to which the position provides 16 the freedom to commit a difficult-to-detect wrong." 17 States v. Allen, 201 F.3d 163, 166 (2d Cir. 2000) (internal 18 quotation marks omitted). 19 20 21 22 23 24 25 26 27 28 U.S.S.G. § 3B1.3. The "applicability of a § 3B1.3 United In imposing this enhancement, the district court explained that: Access to Sheikh Rahman was limited and attorneys were given access for legal purposes. The defendant swore that she would abide by the SAMs and not use her access to pass messages between Sheikh Rahman and the media, but she failed to keep her word. The administration of the SAMs depended on trust placed in attorneys to keep their word. The 43 1 2 3 4 5 6 7 8 defendant was able to participate in smuggling messages into and out of the prison because of the trust placed in her as the attorney for Sheikh Rahman. Even after she had violated the SAMs, she was permitted to visit Sheikh Rahman again because she signed a new affirmation. But, again, she did not abide by that affirmation. 9 10 11 12 13 14 15 16 . . . Ms. Stewart abused her position as a lawyer to gain access to Sheikh Omar Abdel Rahman while he was in prison and used that access to smuggle messages to and from Sheikh Abdel Rahman while he was in prison and to make potential[ly] . . . lethal public statements on his behalf in violation of the SAMs. 17 Stewart II, at 53 (internal quotation marks and citation to 18 transcript of original sentencing hearing omitted). 19 Stewart contends that "any finding that Ms. Stewart 20 'abused trust' is dependent on whether the government explicitly 21 or implicitly sanctioned the conduct upon which the enhancement 22 is based." 23 contesting the obstruction-of-justice enhancement, that because 24 she believed her actions to have been permitted, she did not 25 abuse a position of trust. 26 reason it fails with respect to the obstruction-of-justice 27 enhancement: the ample evidence that Stewart understood her 28 actions to have been in violation of her obligations under the 29 SAMs. 30 actions violating the SAMs during her visits to Abdel Rahman 31 underscore her understanding that she was permitted to be in a Def.'s Br. at 99. Stewart argues, as she did in This argument fails here for the same Indeed, her attempts to evade detection when engaging in 44 1 position of close contact with Abdel Rahman solely by virtue of 2 her position of trust as his attorney, and demonstrate her 3 knowing abuse of that trust. 4 the crimes of which she was found guilty had she not been placed 5 in a position of trust.21 Stewart could not have committed 6 V. Substantive Reasonableness 7 Finally, Stewart argues that her sentence is 8 substantively unreasonable, principally because of the more than 9 fourfold increase from her original sentence of 28 months' 10 incarceration to the currently imposed sentence of 120 months. 11 She asserts that aside from her public statements, "no change in 12 circumstances or information available to the sentencing 13 court . . . supported increasing Ms. Stewart's sentence by this 14 magnitude." 15 district court was not permitted to increase the sentence in 16 response to suggestions that it do so in the dissent from our 17 panel opinion, and in the dissents accompanying the denial of 18 rehearing en banc. 19 light of her personal characteristics, the sentence imposed on Def.'s Br. at 101. She also contends that the Def.'s Br. at 103. 21 And she urges that in The government contends that Stewart's claim on this enhancement is subject to plain error review because she did not object to the enhancement on the same grounds before the district court as she does here. Because Stewart's claim fails under either standard of review, we need not decide which applies in this instance. 45 1 her was so "shockingly high" as to render it substantively 2 unreasonable. 3 The substantive unreasonableness standard "provide[s] a 4 backstop for those few cases that, although procedurally correct, 5 would nonetheless damage the administration of justice because 6 the sentence imposed was shockingly high, shockingly low, or 7 otherwise unsupportable as a matter of law." 8 Rigas, 583 F.3d 108, 123 (2d Cir. 2009). 9 a district court's sentence on substantive grounds "in United States v. We will only set aside 10 exceptional cases where the trial court's decision cannot be 11 located within the range of permissible decisions." 12 States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) 13 (internal quotation marks omitted). 14 A. 15 United Increase without Justification Stewart contends that the district court's decision to 16 impose a fourfold increase in her sentence was unsupportable 17 because the second sentence was imposed based on the same set of 18 facts that led to Stewart's vacated 28-month sentence. 19 "if a district court were explicitly to conclude that two 20 sentences equally served the statutory purpose of § 3553, it 21 could not . . . impose the higher" sentence. 22 Ministro-Tapia, 470 F.3d 137, 142 (2d Cir. 2006). 23 24 Indeed, United States v. Here, however, we previously faulted the district court for its "failure to find particular facts." 46 Stewart I, 590 F.3d 1 at 150-51. We directed the court to make specific findings with 2 regard to whether Stewart had obstructed justice. 3 asked that the court explicitly consider application of the 4 abuse-of-trust enhancement, and "reconsider the extent to which 5 Stewart's status as a lawyer affects the appropriate sentence." 6 Id. 7 and that "[w]hether or not the district court gave appropriate 8 consideration in its section 3553(a) analysis to whether support 9 of terrorism is an aggravating factor in this case . . . may be Id. We also We noted that the terrorism enhancement "plainly applies" 10 subject to disagreement." 11 procedural error on the part of the district court, we instructed 12 the court to "begin with the terrorism enhancement and take that 13 enhancement into account," and to "consider the overall question 14 whether the sentence to be given is appropriate in view of the 15 magnitude of the offense." 16 expressed our "serious doubts that the [original] sentence . . . 17 was [substantively] reasonable." 18 (referring to "the seriousness of Stewart's crimes and the 19 seemingly modest sentence she received for it"). 20 Id. at 151. Id. at 151. After identifying And we explicitly Id.; see also id. at 149 On remand, the district court punctiliously followed 21 our instructions, and in doing so it arrived at the 120-month 22 sentence it imposed on Stewart. 23 same sentence the first time can be attributed largely to the 24 errors we had identified. That it did not calculate the Stewart's contention that there was 47 1 nothing of significance that had changed between the first and 2 second sentencing sufficient to support the greater sentence 3 ignores this entire sequence of events -- most particularly the 4 intervening decision of this Court. 5 The district court acted within its discretion in 6 imposing the 120-month sentence after engaging in a careful 7 consideration of the factors upon which we focused in our prior 8 opinion, and the increase is therefore not "unsupportable as a 9 matter of law." 10 B. Rigas, 583 F.3d at 123. Instruction from Non-controlling Opinions 11 Stewart asserts that the district court's sentence is 12 also unsupportable because it was based on instruction from non- 13 controlling opinions in the preceding appeal, particularly the 14 panel dissent22 and the opinions accompanying the denial of 15 rehearing en banc. 16 concurrence in the denial of rehearing en banc, suggested that it 17 was "inappropriate for other members of the Court to add their 18 views as to what the district court should do on remand [as the] 19 case may return to this Court on a subsequent appeal." Stewart notes that Judge Pooler, in her 22 United The panel majority in Stewart I, 590 F.3d at 150, explicitly invited the district court, upon remand, to consider the views of the panel dissenter (as well as those of the concurring judge) with respect to the district court's consideration of the lack of actual physical harm resulting from Stewart's crimes in imposing sentence. We think that that was tantamount to a broader conclusion on our part that the district court could indeed consider the dissenting opinion when resentencing. 48 1 States v. Stewart, 597 F.3d 514, 519 (2d Cir. 2010) (Pooler, J. 2 concurring in denial of rehearing en banc). 3 because of these non-controlling instructions the district court 4 "concluded that the burden in any successive appeal should be on 5 Ms. Stewart to defend herself and the original sentence, not on 6 the Court." 7 Stewart argues that Def.'s Br. at 116. But counsel conceded at oral argument that no authority 8 supports this argument. 9 written by any judge of this Court who was not on the panel that 10 had a demonstrable effect on the district court at resentencing, 11 let alone anything that would warrant vacatur of the sentence. 12 We read the transcript of the sentencing proceeding, as explained 13 previously, to exhibit a close adherence to the instructions of 14 the panel majority, and a sentence imposed in accordance with 15 those instructions. 16 district court on remand. 17 C. 18 And Stewart does not point to anything That is exactly what was required of the "Shockingly High" Sentence Stewart argues, finally, that the sentence imposed was 19 shockingly high. "Ms. Stewart was 70 years old and in ill-health 20 at the time of the resentencing; 120 months is a life sentence 21 with the realistic possibility she will die in prison. . . . 22 [T]he length of the sentence is 'shockingly high' in light of Ms. 23 Stewart's advanced age [and] fragile health," the lack of 24 prosecution of co-counsel who she asserts engaged in activity 49 1 similarly violative of the SAMs, and in comparison with the 2 sentences of her co-defendants. 3 imposing sentence, the district court explicitly recognized 4 Stewart's "significant health problems," and recognized that she 5 "did not use the practice of law to earn personal wealth"; 6 rather, "she represented the poor, the disadvantaged and the 7 unpopular, often as a court-appointed lawyer." 8 69; see also Stewart I, 590 F.3d at 147-48 (this panel noting 9 same). 10 Def.'s Br. at 102-03. In Stewart II, 68- As the district court also recognized in its initial 11 sentencing, however, "[t]here is [at issue] an irreducible core 12 of extraordinarily severe criminal conduct." 13 quotation marks and citation to transcript of original sentencing 14 hearing omitted). 15 seriousness of Stewart's crimes and the seemingly modest sentence 16 she received for it." 17 resulting sentence fell a full twenty years below the minimum 18 Guidelines sentence and statutory maximum. 19 appropriate factors, the district court determined that a 120- 20 month sentence would be "sufficient, but no greater than 21 necessary" to fulfill the sentencing objectives required under 22 section 3553(a). 23 24 Id. at 63 (internal In Stewart I, we too specifically noted "the Stewart I, 590 F.3d at 149. The 120-month Considering all the It is the "rare case" in which we will find a sentence substantively unreasonable, and we place "great trust" in a 50 1 sentencing court. Rigas, 583 F.3d at 123. In Stewart I, we 2 expressly recognized and were "impressed by the factors that 3 figured in Stewart's modest sentence -- particularly her 4 admirable history of providing, at no little personal cost to 5 herself, proficient legal services in difficult cases to those 6 who could not otherwise afford them." 7 147-48. 8 in aid of a terrorism conspiracy, and she did so by abusing the 9 trust that the government had placed in her as a member of the Stewart I, 590 F.3d at But, nonetheless, she engaged in severe criminal conduct 10 bar. When confronted with these transgressions, she lied 11 repeatedly under oath. 12 From the moment she committed the first act for which 13 she was convicted, through her trial, sentencing, and appeals, 14 Stewart has persisted in exhibiting what seems to be a stark 15 inability to understand the seriousness of her crimes, the 16 breadth and depth of the danger in which they placed the lives 17 and safety of unknown innocents, and the extent to which they 18 constituted an abuse of her trust and privilege as a member of 19 the bar. 20 her was "shockingly high" so as to warrant a finding of 21 substantive unreasonableness. We cannot agree with her that the sentence imposed on 22 23 24 CONCLUSION For the foregoing reasons, the judgment of the district court is affirmed. 51